YOU AND THE LAW™: Can a motorist lose their license and ultimately be convicted if they are suspected of impaired driving and they provide the State a blood alcohol breath sample below .08?
The answer to both questions is a definitive YES. A blood alcohol breath sample of .05 and below is a legal presumption of non-impairment; a blood alcohol breath sample of .08 or above is a legal presumption of impairment. A blood alcohol breath sample between of .051 and .079 is a grey area motorist need to understand if they decided to have a glass of wine while dining at a local restaurant.
If you get stopped by an officer and have alcohol on your breath, you are going to be asked to submit to the Standardized Field Sobriety Test. Note: NO STATUTE OR REGULATION UNDER LOUISIANA LAW REQUIRES YOU TO SUBMIT TO THIS TEST. YOU WILL BE ARRESTED IF YOU REFUSE, BUT YOU DO NOT HAVE TO DO THE TEST. As one certified to administer this test, I can tell you unequivocally that this test is difficult to perform under any circumstance, and much more difficult under the stress associated with any traffic stop.
If you decide to submit to the test, you need to understand you are giving the State evidence that can lead to the suspension of your driving privileges and possibly a DWI conviction if, upon your arrest, you provide a blood alcohol breath sample in the grey area between .051 and.079. The State can us the Standardized Field Sobriety Test as “other competent evidence in determining whether the person was under the influence of alcoholic beverages.”
LSA R.S. 32:662 (A)(1)(b) is the law pertaining to this issue:
A. The chemical test or tests as provided for by this Part shall be subject to the following rules and shall be administered as provided for hereafter:
(1) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
(a) Except as provided in Subparagraph (d), if the person had a blood alcohol concentration at that time 0.05 percent or less by weight, it shall be presumed that the person was not under the influence of alcoholic beverages.
(b) Except as provided in Subparagraph (d), if the person had a blood alcohol concentration at that time in excess of 0.05 percent but less than 0.08 percent by weight, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages.
(c) If the person had a blood alcohol concentration at that time of 0.08 percent or more by weight, it shall be presumed that the person was under the influence of alcoholic beverages.
(d) If the person was under the age of twenty-one years at the time of the test and had a blood alcohol concentration at that time of 0.02 percent or more by weight, it shall be presumed that the person was under the influence of alcoholic beverages.
(2) The blood alcohol concentration or level shall be based upon grams of alcohol per one hundred cubic centimeters of blood. Individuals measured through breath shall be afforded the timely option of the administration of a blood test for alcohol content.
B. The provisions of Subsection A of this Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964.
C. Except as provided in Paragraph A(2) of this Section, this Section has no application to a civil action or proceeding.
Alvin D. Hunt
Attorney-at-Law
337.310.9111